State v. Taylor

• Decision Date: 26 November 1986
• Docket Number: No. 12-85-0074-CV,12-85-0074-CV
• Citation: 721 S.W.2d 541
• Parties: STATE of Texas, Appellant, v. Chuck TAYLOR, et al., Appellees.
• Court: Texas Court of Appeals

Page 541

721 S.W.2d 541

STATE of Texas, Appellant, v. Chuck TAYLOR, et al., Appellees.

No. 12-85-0074-CV.

Court of Appeals of Texas Tyler.

Nov. 26, 1986.

Rehearing Denied Dec. 23, 1986.

Elliott Mitchell, Asst. Atty. Gen., Austin, for appellant.

Edward Vassallo, Dallas, for appellees.

COLLEY, Justice.

This is a condemnation case. On October 27, 1981, the State filed its original petition for condemnation against Chuck Taylor, Etta Taylor Booher, and Ethel Jane Wiser, a lienholder, seeking to acquire the fee title to 23.7 acres situated on the T.W. Ritter Survey in Kaufman County. ¹ On December 16, 1981, the special commissioners appointed by the Judge of the 86th Judicial District Court awarded Taylor and Booher (hereafter Taylor) $66,586 as damages for the taking. Taylor timely filed objections to the award. On September 27, 1984, the State filed its first amended pleading naming as parties defendant (lienholders) the beneficiaries under the last will and testament of Ethel Jane Wiser, deceased.

The case went to trial before a jury. ² Based on the verdict, the trial court signed the judgment in favor of Taylor in the net amount of $176,818. ³

The State seeks reversal of the judgment and a remand of the cause for a new trial. We affirm.

The State briefs nine points of error. By its first point, the State contends the court erred in refusing to permit the filing of a trial amendment enlarging the area of access ⁴ allowed Taylor from the south remainder to and from the condemned area and a public two-lane access or service (frontage) road leading through the condemned area to FM Road 740 located some 1,500 feet from the area of access provided. The 23.7-acre tract of land taken for highway purposes bisects a 106-acre tract owned by Taylor located on the Ritter Survey, leaving a 30.6 acre remainder tract on the north, and a 52 acre remainder tract on the south. ⁵ Before the taking, the 106 acres adjoined a public road (Wiser Road) for some 1040 feet on its north side. After the taking, the north remainder retained the same access to Wiser road, but the south remainder of 52 acres was cut off from direct access thereto. The first amended petition for condemnation filed by the State, and upon which it went to trial, reserved to Taylor the right of access over and across the condemned lands from the south remainder, but not the north remainder, in the following language, to wit:

Access will be permitted to the south remainder abutting the highway facility between a point being the beginning of the fourth call and a point being North 79? 40' 41"' West 70 feet from the beginning of the fourth call of the foregoing field note description.

Access will be denied to the south remainder abutting the highway facility from a point being North 79? 40' 41"' West 70 feet from the beginning of the fourth call and extending to the end of the sixth call of the foregoing field note description. Access will be denied to the north remainder abutting the highway facility.

The attached Appendices "A" and "B" demonstrate the relationship between the remainders and the access road as well as the area of access from the south remainder to the condemned strip.

It is true, as the State contends, that a condemnor has "the right to dismiss as to a portion of the lands when it decides that its purpose may be accomplished with less land than was initially sought." (Citations omitted.) Thompson v. Janes, 151 Tex. 495, 251 S.W.2d 953, 954-955 (1952). However, it is also well established that the condemnor's right to reduce the character, nature or extent of the title condemned cannot be exercised to the prejudice of the landowner. Thompson v. James, 251 S.W.2d at 955; Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524, 530-531 (1958). Here, the tendered amendment to the State's petition for condemnation, if allowed, would have granted Taylor and the public, the right of ingress and egress over and across a portion of the condemned right of way measuring 140.8 feet in width instead of 70 feet in width in order to reach the service or access road running to FM 740. As demonstrated by the Appendices, the south right of way line of the access road abuts the north boundary line of the south remainder. ⁶ Under the evidence before us, Taylor, in order to accommodate vehicular traffic, would have to construct a suitable drive connecting the south remainder and the access road which dead ends 70 feet west of the northeast corner of the south remainder. It is undisputed that, absent the access afforded the south remainder by the State's first amended pleading, such tract, after the take, would have been landlocked, a condition calculated to destroy its value. The value witnesses for the State and Taylor testified that the value of the south remainder was reduced ⁷ by the taking even with the 70 foot access provided by the State's first amended petition for condemnation. The issue raised by the first point is not whether the State was entitled to relinquish its right to exclusive possession of the condemned right of way along the additional 70 feet abutting the access road. Texas Power & Light Co. v. Cole settles that question. The real issue is whether the trial court abused its discretion in not permitting the filing of the trial amendment at the time ⁸ it was tendered.

Our Supreme Court has stated that amendments of pleadings in condemnation cases pending in the courts are governed by the appropriate Texas Rule of Civil Procedure. ⁹ State v. Nelson, 160 Tex. 515, 334 S.W.2d 788, 790 (1960). We agree with the State that the provisions of Rule 63 ¹⁰ must be considered in our review of the trial judge's action refusing to permit the filing of the trial amendment. On appeal, the burden rests with the State to demonstrate that the judge's action amounted to an abuse of his judicial discretion. Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex.1980). When the amendment was offered Taylor objected to its tardy filing, pointing out that he had rested his case-in-chief; that the date of the take was January 28, 1982 (some thirty-three months before the trial date); and that Taylor during the pendency of the case had no "inkling" of the State's intention to grant the additional 70 foot of access adjoining the access road. The State argues that the amendment was offered to enlarge the useable ¹¹ access from the south remainder to the access road so as to reduce Taylor's damages to that tract. The State contends that "it is hardly possible ... to think that [Taylor] could have been surprised by the amendment ... considering that [Taylor] had been aware for over 3 years of the State's intention to grant access from [the] south remainder." The flaw in that argument is that since the initiation of the proceeding in 1981, the State's pleadings only permitted the 70 foot wide access. Additionally, although Taylor could not contest the right of the State to condemn the property, ¹² he was certainly entitled to presume during the pendency of the action that the State Highway Commission had not authorized ¹³ access in addition to the original 70 feet. The record before the trial judge was that Taylor had rested; his value witnesses had rendered their opinions as to damages based on the 70 foot access of which only 20 to 25 feet ¹⁴ was useable for vehicular traffic because the remainder of the 70 feet was located in a creek. Both value witnesses testified that the major cause of the reduction in value of the south remainder after the taking was the small area of actual physical access provided. The State, in its claim that the trial court abused its discretion attaches significance to the fact that Taylor's value witnesses were well prepared to testify concerning the monetary effect of impaired or limited access to public roads from the south remainder. So, argues the State, the trial amendment would have provided a greater area of access to the formerly "landlocked" south remainder thereby reducing the amount of Taylor's damages. The State also contends that Taylor could not be "surprised by the amendment" because Taylor "had been aware for over three years of the State's intention to grant access from [the] south remainder." The argument is unsound. While the State had a substantive law right to amend its petition for condemnation in order to relinquish title or rights originally sought, that right is not unbounded. Hardin v. Hardin, 597 S.W.2d at 349. The assertion of the right is limited by the application of Rule 63. As amply demonstrated by the record, the State had been aware for almost three years before trial that unless an adequate access was provided to the public roads located near the south remainder, such tract would be absolutely "landlocked," a condition which would virtually destroy its value for all purposes. Therefore, the State Highway and Public Transportation Commission as authorized by statute, ¹⁵ initially provided the 70 foot access apparently on the advice of the engineering and right-of-way personnel of the State Department of Highways and Public Transportation. Since the State went to trial on its first amended petition, it was quite reasonable for Taylor to conclude that the Highway Commission had taken no action to modify the extent of the access permitted. The record does not reveal whether the Commission did in fact exercise its authority under the statute to enlarge the access. ¹⁶ If prior to trial, the Commission did in fact modify its original order to provide the 140 foot access from the south remainder, the assistant attorney general in charge of the matter had a duty to cause an amendment to be timely filed reflecting the change, or to at least notify Taylor of the change. His failure to do so shows a want of diligence on the State's part which deprived Taylor of notice of the nature and extent of the taking upon which his right to damages rested. See Coastal Indus. Water v. Celanese Corp., 592 S.W.2d 597, 601 (T...